PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT
INTERNAL MEMORANDUM
PREPARED IN ANTICIPATION OF LITIGATION — NOT FOR DISTRIBUTION OUTSIDE OF PRIVILEGED RECIPIENTS
Date: May 2, 2023
To: Samuel Eklund, Responsible Partner, Litigation (General)
From: Patrick Gallagher, Lead Associate, Litigation (General)
Re: Burden of Proof Analysis — Termination for Cause; Vantor Holdings Corp. v. Stonefield Logistics Group Inc., Case No. 22-cv-07841 (S.D.N.Y.)
Matter No.: 1012-00005
Client: Stonefield Logistics Group Inc.
I. Executive Summary
This memorandum analyzes the allocation of burdens of proof on the central question presented in Vantor Holdings Corp. v. Stonefield Logistics Group Inc., Case No. 22-cv-07841 (S.D.N.Y.) — namely, whether Stonefield Logistics Group Inc.'s ("Stonefield" or "SLG") March 4, 2022 termination of the Transportation Services Agreement (the "TSA"), Contract Reference No. SLG-VTS-2019-0315, dated March 15, 2019, constituted a valid termination "for Cause" under Section 13.1(a) of that agreement. This question stands at the core of every aspect of the litigation — Vantor's affirmative claims, Stonefield's principal affirmative defense, and Stonefield's counterclaim for declaratory judgment — and a clear understanding of burden allocation is essential to shaping our dispositive motion strategy.
The burden question is complicated by the dual posture of the case. On the one hand, Vantor Holdings Corp. ("Vantor" or "VTS"), as plaintiff, asserts breach of contract, contending that Stonefield's termination was wrongful and pretextual, and seeks approximately $95.4 million in total damages. On the other hand, Stonefield asserts the validity of its Cause termination both as its First Affirmative Defense and as the basis of its counterclaim for declaratory judgment, filed on January 13, 2023. These overlapping postures create a somewhat nuanced burden framework that must be addressed carefully in any summary judgment briefing.
The core conclusions of this memorandum are as follows:
First, Vantor, as plaintiff asserting breach of contract, bears the initial burden of proving the elements of its breach claim — including that Stonefield's termination of the TSA constituted a breach, i.e., that the termination was not valid for Cause. As part of its prima facie case, Vantor must also establish its own performance under the TSA (or excuse for nonperformance), which implicates the first-to-breach analysis addressed separately in the March 15, 2023 memorandum prepared by Simone Laroche.
Second, Stonefield bears the burden of proof on its First Affirmative Defense — that Cause existed for termination under Section 13.1(a). This is an affirmative defense within the meaning of Federal Rule of Civil Procedure 8(c), and Stonefield must prove each element by a preponderance of the evidence.
Third, on its counterclaim for declaratory judgment, Stonefield likewise bears the burden of establishing that the termination was valid for Cause, as the party seeking affirmative relief.
Fourth, and most critically from a strategic perspective, the practical impact of bearing the affirmative defense burden is substantially mitigated by the strength of the evidentiary record. The objective performance data — derived almost entirely from VTS's own Carrier Performance Portal — is largely undisputed and establishes SLO failures across all five metrics in Q4 2021. Key deposition admissions from VTS's own witnesses, coupled with Vantor's RFA responses, further bolster the factual record in Stonefield's favor.
Our strategic recommendation is to frame any summary judgment motion to lead with these undisputed objective facts, presenting the Cause defense in a manner that effectively shifts the practical burden to Vantor to generate a genuine dispute of material fact. We should rely heavily on VTS's own admissions and internal data, emphasize the adequacy of the Cure Notice, and demonstrate VTS's failure to cure within the contractual cure period. Where disputed facts exist — principally surrounding the Kirkwood September 22, 2021 email and Stonefield's awareness of the impending April 2022 rate adjustment — we should argue that those disputes are immaterial as a matter of law because New York law does not permit inquiry into subjective motive when objective contractual grounds for termination are independently satisfied.
II. Procedural Posture and Relevant Pleadings
A. Vantor's Amended Complaint (Filed December 2, 2022)
Vantor Holdings Corp. is a New York corporation with its principal offices at 580 Eighth Avenue, 14th Floor, New York, New York 10018. Vantor is the parent company and sole owner of Vantor Transportation Services LLC ("VTS"), the operating entity that served as the contract carrier under the TSA. In its Amended Complaint, filed on December 2, 2022, Vantor alleges that Stonefield Logistics Group Inc. — a Delaware corporation headquartered at 4200 Commerce Parkway, Suite 800, Fort Worth, Texas 76102 — breached the TSA by wrongfully terminating the agreement effective March 4, 2022.
Vantor's theory of the case rests on two principal pillars. First, Vantor contends that the termination was pretextual and was not supported by valid Cause within the meaning of Section 13.1(a) of the TSA. According to Vantor, Stonefield seized upon what it characterizes as routine, industry-wide operational challenges in Q4 2021 — exacerbated by the lingering effects of the COVID-19 pandemic and a national driver shortage — to manufacture a pretext for exiting a contract that had become economically unfavorable due to a scheduled rate adjustment in April 2022. Second, Vantor contends that to the extent VTS experienced performance deficiencies during the relevant period, those deficiencies were proximately caused by Stonefield's own breaches of the TSA — specifically, Stonefield's alleged failure to tender the minimum annual contract value ("ACV") in freight volumes and Stonefield's diversion of freight to competing carriers, including Cascade Freight Systems Inc. and Briarwood Trucking Co.
Vantor claims approximately $95.4 million in total damages. This figure comprises the following components:
• $67.23 million in liquidated damages under Section 14.2 of the TSA, representing the balance of the minimum ACV over the remaining contract term (through March 14, 2024);
• $18.7 million in lost profits over the remaining contract term, calculated on a discounted cash flow basis;
• $5.2 million in stranded assets, including tractors, trailers, and specialized equipment acquired or dedicated to the Stonefield account;
• $2.87 million in workforce reduction costs, including severance payments, WARN Act compliance costs, and related expenses arising from the termination of approximately 220 drivers and support staff; and
• $1.4 million in mitigation costs incurred in attempting to redeploy assets and personnel following termination.
Vantor is represented by Caldwell Royce & Shapiro LLP, located at 1 Liberty Plaza, 22nd Floor, New York, New York 10006. Lead counsel is Harrison Caldwell, a named partner at the firm, with senior associate Jason Whitford serving as day-to-day litigation counsel. Caldwell Royce has been aggressive in discovery and has signaled through meet-and-confer correspondence an intent to seek leave to file a Second Amended Complaint to add a claim for tortious interference with business relations, although no motion has yet been filed.
B. Stonefield's Answer, Affirmative Defenses, and Counterclaim (Filed January 13, 2023)
Stonefield filed its Answer, Affirmative Defenses, and Counterclaim on January 13, 2023. The Answer is a 42-page filing that denies all material allegations of the Amended Complaint and provides detailed factual responses to each of Vantor's numbered paragraphs. The Answer contains fourteen separately identified affirmative defenses, which are listed in pertinent part as follows:
1. First Affirmative Defense: Valid termination for Cause under Section 13.1(a) of the TSA;
2. Second Affirmative Defense: The liquidated damages clause of Section 14.2 is unenforceable as an impermissible penalty under New York law;
3. Third Affirmative Defense: Failure to mitigate damages;
4. Fourth Affirmative Defense: Force majeure under Section 12.1 of the TSA (with respect to CY2 volume shortfall claims);
5. Fifth Affirmative Defense: Unclean hands;
6. Sixth Affirmative Defense: Contributory breach by Vantor/VTS;
7. Seventh Affirmative Defense: First-to-breach doctrine;
8. Eighth Affirmative Defense: Waiver;
9. Ninth Affirmative Defense: Estoppel;
10. Tenth Affirmative Defense: Right of setoff;
11. Eleventh Affirmative Defense: Consequential damages waiver under Section 15.1 of the TSA;
12. Twelfth through Fourteenth Affirmative Defenses: Additional defenses including failure to state a claim, statute of limitations (as to certain pre-TSA claims), and reservation of additional defenses.
In addition to its affirmative defenses, Stonefield filed a counterclaim for declaratory judgment pursuant to 28 U.S.C. § 2201. The counterclaim seeks a judicial declaration that: (i) Stonefield's termination of the TSA was valid and for Cause under Section 13.1(a); (ii) no liquidated damages or other damages are owed to Vantor under the TSA; and (iii) any material breach of the TSA was committed by VTS, not by Stonefield.
Vantor filed its Answer to the Counterclaim on January 27, 2023, denying the material allegations of the counterclaim and asserting several affirmative defenses of its own, including that Stonefield's purported Cause was pretextual and that VTS substantially cured any alleged deficiencies within the cure period.
C. Case Management
The case is assigned to the Honorable Margaret T. Calloway, United States District Judge for the Southern District of New York. Judge Calloway entered a Case Management Order on February 17, 2023, establishing the following key deadlines:
• Fact discovery Deadline: September 29, 2023
• Expert discovery Deadline: January 12, 2024
• Dispositive Motion Deadline: March 1, 2024
Discovery is currently proceeding on schedule, with several key depositions already completed or scheduled, as discussed in greater detail in Section IV below. No motions to compel or protective order disputes have been filed, although there has been ongoing correspondence between counsel regarding the scope of document production related to Stonefield's internal rate analysis and strategic planning documents.
The TSA contains a governing law clause specifying that the agreement is governed by and construed in accordance with the laws of the State of New York, without giving effect to principles of conflicts of law. The TSA also contains a forum selection clause designating the United States District Court for the Southern District of New York as the exclusive forum for any disputes arising under or relating to the agreement. Vantor's choice of this forum was therefore consistent with the contractual designation, and no challenge to jurisdiction or venue has been raised.
III. Burden of Proof Framework Under New York Law
A. General Principles
In a breach of contract action under New York law, the plaintiff bears the burden of proving each element of its claim by a preponderance of the evidence. The elements of a breach of contract claim under New York law are well-settled: (1) the existence of a valid and binding contract; (2) plaintiff's own performance under the contract (or a legally sufficient excuse for nonperformance); (3) defendant's breach of the contract; and (4) damages resulting from the breach. See Harris v. Seward Park Hous. Corp., 79 A.D.3d 425, 426 (1st Dep't 2010); Diesel Props S.r.l. v. Greystone Bus. Credit II LLC, 631 F.3d 42, 52 (2d Cir. 2011).
As applied to this case, Vantor, as plaintiff, must prove that Stonefield's termination of the TSA constituted a breach — that is, that the termination was not valid for Cause under Section 13.1(a). The first element — the existence of a valid contract — is undisputed, as both parties acknowledge the existence and validity of the TSA. The fourth element — damages — is contested on multiple grounds but is analytically separate from the Cause question. The contested elements are the second (Vantor's own performance) and the third (Stonefield's breach).
The standard of proof applicable in this diversity action is the preponderance of the evidence standard. This is the standard that governs contract claims under New York law and is also the default standard in federal civil proceedings. Under this standard, the party bearing the burden must establish that the existence of the fact at issue is more probable than its nonexistence. See Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Tr. for S. Cal., 508 U.S. 602, 622 (1993).
It is important to note that Vantor's burden on the breach element is framed in the negative: Vantor must prove that Stonefield's termination was not authorized by the TSA. In practical terms, Vantor will attempt to meet this burden by showing that the conditions precedent to a valid Cause termination under Section 13.1(a) were not satisfied — either because VTS did not commit a material breach, because the Cure Notice was deficient, or because VTS cured within the cure period. However, because Stonefield has also raised valid Cause termination as an affirmative defense and as the basis for its declaratory judgment counterclaim, the burden allocation is more nuanced than a simple plaintiff-proves-breach framework, as discussed below.
B. Burden on Affirmative Defenses
Under federal procedural law, which applies in this diversity action with respect to procedural matters including burden allocation on affirmative defenses, the defendant bears the burden of proving each affirmative defense by a preponderance of the evidence. See Graffanino v. United States, 2023 WL 2327198, at 4 (S.D.N.Y. Mar. 2, 2023); In re Motors Liquidation Co., 529 B.R. 510, 560 (Bankr. S.D.N.Y. 2015) (collecting cases). This rule derives from the fundamental principle that a party asserting an affirmative defense bears the burden of persuasion on that defense, regardless of which party bears the ultimate burden on the underlying claim. See Fed. R. Civ. P. 8(c); Taylor v. Republic Auto. Parts, Inc.*, 22 F. App'x 537, 541 (6th Cir. 2001).
Stonefield's First Affirmative Defense — valid termination for Cause under Section 13.1(a) of the TSA — is properly characterized as an affirmative defense within the meaning of Rule 8(c). By asserting this defense, Stonefield effectively acknowledges that it terminated the TSA (which is an undisputed fact) but contends that the termination was contractually authorized and therefore did not constitute a breach. The burden of proving that Cause existed — including each element required under Section 13.1(a) and the procedural prerequisites of Section 13.2 — rests with Stonefield.
The distinction between the plaintiff's burden on the breach element and the defendant's burden on the Cause affirmative defense is critical and somewhat counterintuitive. In the typical termination-for-cause case, the burdens operate sequentially. Vantor must initially establish that the termination occurred and that it was a breach of the TSA — a relatively modest showing, given that the fact of termination is undisputed and the TSA generally prohibited termination except as specifically authorized. Once Vantor has made this threshold showing, the burden effectively shifts to Stonefield to justify the termination under the contractual Cause provision. In practice, therefore, the lion's share of the evidentiary contest will take place on Stonefield's affirmative defense, where Stonefield carries the burden.
This burden allocation is consistent with New York law governing the interpretation and enforcement of termination provisions in commercial contracts. New York courts have consistently held that a party seeking to justify termination of a contract under a "for cause" or "for default" provision bears the burden of demonstrating that the contractual conditions for such termination were satisfied. See Lucente v. Int'l Bus. Machs. Corp., 310 F.3d 243, 258 (2d Cir. 2002) (applying New York law); Bush v. Protravel Int'l, Inc., 192 Misc. 2d 743, 748 (N.Y. Sup. Ct. 2002).
C. Burden on the Declaratory Judgment Counterclaim
On Stonefield's counterclaim for declaratory judgment — seeking a judicial declaration that the termination was valid for Cause under Section 13.1(a) — Stonefield bears the burden as the party seeking affirmative relief. The Declaratory Judgment Act, 28 U.S.C. § 2201, does not itself alter the burden of proof; rather, the burden falls on the party that would have borne the burden if the underlying substantive claim had been brought in a coercive action. See Medimmune, Inc. v. Pemberton Partners LLC, 549 U.S. 118, 128–29 (2007); Starter Corp. v. Converse, Inc., 170 F.3d 286, 295 (2d Cir. 1999). Because Stonefield affirmatively seeks a judicial declaration that its termination was valid, Stonefield bears the burden of establishing the factual and legal predicates for that declaration.
This means that, on the counterclaim, Stonefield must independently prove each of the following elements:
(i) VTS committed a material breach of one or more provisions of the TSA, as required by Section 13.1(a);
(ii) Stonefield delivered a Cure Notice satisfying Section 13.2's requirement of "reasonable particularity" in specifying the alleged breach;
(iii) VTS failed to cure the identified breach within the 30-calendar-day cure period prescribed by Section 13.2; and
(iv) Stonefield's termination was therefore valid under Section 13.1(a).
It is important to recognize that the counterclaim burden and the affirmative defense burden are substantively identical — the same facts and legal elements must be proven in both contexts. The distinction is procedural and strategic. On the affirmative defense, Stonefield seeks merely to defeat Vantor's breach of contract claim by showing that the termination was contractually authorized. On the counterclaim, Stonefield seeks a judgment on the merits — an affirmative judicial declaration that the termination was valid and that no damages are owed. This distinction has several practical consequences. First, a successful affirmative defense results only in a defense verdict on Vantor's claims; a successful counterclaim results in a judgment in Stonefield's favor that can be cited as a binding adjudication of the Cause question. Second, if Vantor were to voluntarily dismiss its claims at any point, the counterclaim would survive and provide an independent basis for Stonefield to obtain judicial resolution. Third, the counterclaim frames Stonefield as affirmatively seeking vindication rather than merely defending — a narrative positioning that may resonate with the trier of fact.
D. Interplay Between Plaintiff's Prima Facie Case and Defendant's Affirmative Defense
The interaction between Vantor's prima facie case and Stonefield's Cause affirmative defense requires careful analysis, particularly in the context of summary judgment practice.
At the summary judgment stage, these overlapping burdens operate as follows. If Stonefield, as the movant on its Cause defense (whether styled as a motion for summary judgment on Vantor's claims or on Stonefield's counterclaim), produces sufficient evidence to support each element of valid Cause termination, the burden shifts to Vantor to identify specific facts creating a genuine dispute. Conversely, if Vantor moves for summary judgment on its breach claim, Vantor must demonstrate the absence of any genuine dispute as to whether the termination was contractually authorized — effectively, Vantor would need to show that no reasonable trier of fact could find that Cause existed.
Within Vantor's prima facie case, the second element — Vantor's own performance under the TSA — warrants particular attention. Vantor must demonstrate either that it performed its obligations under the TSA or that it was excused from performance. This element intersects directly with Stonefield's Seventh Affirmative Defense — the first-to-breach doctrine. Under New York law, a party that commits the first material breach of a contract may not recover damages for the other party's subsequent non-performance. See RXR Realty LLC v. 530 Fifth Ave. S, LLC, 2013 WL 1751491, at 4 (Sup. Ct. N.Y. Cnty. 2013); Bear Stearns Inv. Prods., Inc. v. Hitachi Auto. Prods. (USA), Inc.*, 401 B.R. 598, 618 (Bankr. S.D.N.Y. 2009). This doctrine is analyzed in detail in the March 15, 2023 memorandum prepared by Simone Laroche, which concluded that strong evidence supports Stonefield's position that VTS committed the first material breach.
Specifically, the evidence shows that VTS unilaterally reduced fleet capacity in October 2021 by pulling 85 tractors off SLG-dedicated lanes and reassigning them to the Northwind Distribution Co. account. This redeployment is documented in Sandra Milescu's November 12, 2021 email (Bates No. VHC-008417), which states in relevant part: "We pulled 85 tractors off the SLG dedicated lanes to cover the Northwind ramp. Alex [Vantorovich] approved the move — SLG will just have to deal with the reduced capacity for a while." If VTS committed this first material breach — a unilateral reduction in committed fleet capacity that preceded any alleged Stonefield volume shortfalls in Q4 2021 — Vantor cannot establish its own performance under the TSA. This failure would defeat Vantor's prima facie case entirely, independent of the Cause affirmative defense, and on a ground where Vantor — not Stonefield — bears the burden. The first-to-breach theory therefore provides an alternative, burden-favorable path to summary judgment that should be pursued in parallel with the Cause defense.
IV. Application to the Facts — Stonefield's Burden on Cause
A. Elements Stonefield Must Prove
1. Material Breach by VTS
Stonefield must demonstrate that VTS's Q4 2021 performance failures constituted a "material breach of any provision of this Agreement" within the meaning of Section 13.1(a) of the TSA. Section 13.1(a) provides that either party may terminate the TSA for Cause upon the occurrence of "a material breach of any provision of this Agreement by the other party, provided that the non-breaching party has delivered a Cure Notice in accordance with Section 13.2 and the breaching party has failed to cure such breach within the Cure Period." The TSA does not define "material breach" but incorporates by reference the Service Level Objectives ("SLOs") set forth in Schedule B, Section 3, which establish minimum performance benchmarks across five categories. Persistent failure to meet SLO thresholds was identified in the TSA as a basis for concluding that a material breach has occurred, as Schedule B, Section 3(f) states: "Failure to meet one or more SLO thresholds for two or more consecutive Measurement Periods shall constitute a material breach for purposes of Section 13.1."
The specific metrics that Stonefield must prove, all pertaining to Q4 2021 performance, are as follows:
In addition to these metric-specific failures, Stonefield must also establish VTS's chronic failure to provide substitute equipment or surge capacity as required by Section 7.4 of the TSA. Section 7.4 required VTS to "use commercially reasonable efforts to procure substitute equipment or provide surge capacity from its network within 48 hours of a capacity shortfall event." The evidence indicates that VTS failed to provide substitute equipment on numerous occasions during Q4 2021, despite repeated requests from Stonefield's operations team.
These metrics are derived from VTS's own Carrier Performance Portal ("CPP"), an electronic platform operated and maintained by VTS that tracked real-time performance data across all carrier operations. The reliability of the CPP data was confirmed by Raymond Hess, Director of Contract Compliance at Stonefield, during his deposition on July 27, 2023. Hess testified that the Q4 2021 performance data cited in the Cure Notice was "pulled directly from VTS's own performance portal" and that "VTS's people had access to the same data — they could see the same numbers we were seeing in real time." Critically, Hess further testified that VTS did not dispute the accuracy of these metrics at any point during the cure period or in its February 14, 2022 response to the Cure Notice.
This last point is corroborated by VTS's own documents. VTS's February 14, 2022 response to the Cure Notice — a five-page letter from Derek Pruitt (VP of Operations, VTS) to Janet Kirkwood (SVP of Supply Chain, Stonefield) — did not challenge the accuracy of the underlying performance data. Instead, the letter acknowledged "operational challenges" while attributing them to external factors. The letter stated, among other things, that VTS had "experienced unprecedented headwinds in Q4 2021, including a nationwide driver shortage that has been well-documented across the industry." The letter did not assert that the SLO metrics were inaccurate; rather, it argued that the failures should be excused due to circumstances beyond VTS's control.
Additionally, Vantor's responses to Stonefield's First Set of Requests for Admissions, served on April 14, 2023, included a critical admission: Vantor admitted that "the on-time pickup rate for VTS under the TSA was 78.2% during the fourth quarter of 2021." While Vantor attempted to qualify this admission by attributing the shortfall to Stonefield's conduct, the admission itself confirms the accuracy of at least one key metric.
Assessment: This element is well-supported by objective, largely undisputed data drawn from VTS's own internal systems and confirmed by both parties' witnesses. The SLO failures are substantial — every metric missed its threshold by a wide margin, with shortfalls ranging from 0.57 percentage points (cargo claims ratio) to 23 percentage points (equipment availability). The magnitude and breadth of these failures — spanning all five SLO categories — strongly support a finding of material breach under both Section 13.1(a) and the general standards for materiality under New York law. See, e.g., Restatement (Second) of Contracts § 241 (listing factors for determining materiality, including the extent of deprivation of the expected benefit and the likelihood of cure). This element is a strong candidate for summary judgment, as there appear to be no genuine disputes of material fact concerning the performance data itself.
2. Adequate Cure Notice Under Section 13.2
Section 13.2 of the TSA establishes the procedural prerequisites for a valid Cause termination. It provides that before terminating for Cause under Section 13.1(a), the non-breaching party must deliver "a written Cure Notice specifying with reasonable particularity the alleged breach and affording the breaching party a period of thirty (30) calendar days from receipt of such Cure Notice (the 'Cure Period') to cure the breach."
Stonefield's Cure Notice, dated January 18, 2022, was transmitted via email and overnight courier from Raymond Hess (Director, Contract Compliance, Stonefield) to Sandra Milescu (SVP of Operations, VTS), with copies to Janet Kirkwood, Tobias Wren (General Counsel, SLG), and Derek Pruitt. The Cure Notice is a seven-page document that identifies each specific performance metric at issue, states the applicable SLO threshold, provides the actual performance figure for Q4 2021, calculates the magnitude of the shortfall, and identifies the specific TSA provisions that were breached. The Cure Notice further identifies VTS's failure to provide substitute equipment under Section 7.4 and sets forth the 30-calendar-day cure period.
The adequacy of the Cure Notice — specifically, whether it satisfies Section 13.2's "reasonable particularity" requirement — was analyzed in detail in the October 20, 2022 memorandum prepared by Simone Laroche. That memorandum concluded, after reviewing the relevant New York case law on the "reasonable particularity" standard in cure notice provisions, that Stonefield's January 18, 2022 Cure Notice comfortably satisfies the standard. The memorandum observed that the Cure Notice "identifies each alleged breach with specificity, provides supporting data, cites the applicable contractual provisions, and clearly communicates the required cure and the consequences of failure to cure — precisely the type of notice that New York courts have consistently found adequate." See, e.g., Atl. Realty Co. v. 2 Show of Hands LLC, 2010 WL 11681285 (N.Y. Sup. Ct. 2010) (cure notice adequate where it specified the nature of the default and the provision breached).
Assessment: The adequacy of the Cure Notice is likely undisputed or, at a minimum, easily proven on summary judgment. Vantor has not raised any specific objection to the form or content of the Cure Notice in its pleadings, its discovery responses, or through its deposition witnesses. The Cure Notice is detailed, specific, and clearly satisfies the "reasonable particularity" requirement.
3. Failure to Cure Within 30-Day Period
The Cure Period prescribed by Section 13.2 ran for 30 calendar days from VTS's receipt of the Cure Notice. The Cure Notice was delivered by overnight courier on January 18, 2022, and VTS acknowledged receipt on the same day by email from Derek Pruitt. The 30-day Cure Period therefore expired on February 17, 2022.
VTS's response to the Cure Notice was a letter dated February 14, 2022, from Derek Pruitt (VP of Operations, VTS) to Janet Kirkwood (SVP of Supply Chain, Stonefield). The letter is five pages in length and addresses the performance deficiencies identified in the Cure Notice. The letter does not claim that VTS had cured the deficiencies. Instead, the letter: (i) acknowledged "operational challenges" across the identified metrics; (ii) attributed those challenges to three external factors — a nationwide driver shortage, Stonefield's alleged volume shortfalls below the ACV, and Stonefield's alleged diversion of freight volume to Cascade Freight Systems Inc. and Briarwood Trucking Co.; (iii) asserted that VTS had achieved "substantial cure" of the identified deficiencies through "enhanced recruiting efforts," "improved dispatch protocols," and "operational restructuring"; and (iv) disputed the cargo claims data, asserting that four of the sixteen claims identified in the Cure Notice were attributable to shipper-side packing deficiencies rather than carrier fault.
The question of whether VTS's response constituted adequate cure — and, in particular, whether the "substantial cure" doctrine recognized in some New York decisions applies in this context — was analyzed in detail in the November 1, 2022 memorandum prepared by Simone Laroche (titled "Sufficiency of Cure / 'Substantial Cure' Doctrine"). That memorandum reached several important conclusions. First, it concluded that VTS's February 14, 2022 response did not constitute cure within the meaning of Section 13.2, because the response "acknowledges ongoing problems without demonstrating actual remediation or a return to compliance with the SLO thresholds." Second, the memorandum observed that the "substantial cure" doctrine, as applied by New York courts, requires the breaching party to demonstrate that it has taken concrete, measurable steps to eliminate the breach and that those steps have been substantially successful in restoring performance. See Oscar Gruss & Son, Inc. v. Hollander, 337 F.3d 186, 196 (2d Cir. 2003) (applying New York law). VTS's letter identifies general categories of remedial action ("enhanced recruiting efforts," "improved dispatch protocols") without providing specific details, metrics, or evidence of results. Third, and most significantly, post-cure-period performance data from Stonefield's internal systems — specifically, March 2022 metrics pulled from the SLG Transportation Management System — showed continued failures across all SLO categories, confirming that whatever steps VTS had taken during the Cure Period were insufficient to restore compliance.
The deposition testimony of Derek Pruitt, taken on July 10, 2023 (approximately 7 hours), further supports this element. Pruitt, who signed the February 14, 2022 response letter, acknowledged during his deposition that VTS "struggled" to maintain committed fleet capacity during Q4 2021. When asked to identify specific steps that VTS took during the 30-day Cure Period to remediate the identified deficiencies, Pruitt was unable to identify concrete mitigation measures. He testified that VTS had "initiated conversations with recruiting partners" and "explored options for surge capacity" but could not point to any specific hires, equipment deployments, or operational changes implemented during the Cure Period. Pruitt also acknowledged that he was unable to identify specific mitigation steps taken after the termination date to address the underlying performance issues.
Assessment: The factual support for this element is strong. The evidence establishes that VTS's cure response was aspirational rather than substantive, and that actual performance did not improve during or after the Cure Period. Vantor's "substantial cure" argument — while potentially creating a nominal triable issue — is significantly undercut by the objective post-cure-period data and by Pruitt's deposition admissions. The most effective approach at summary judgment will be to juxtapose VTS's generalized assertions of "substantial cure" with the objective data showing continued noncompliance and with Pruitt's inability to identify specific remedial actions.
4. Valid Termination
Stonefield's termination of the TSA was effectuated by a letter dated March 4, 2022, sent by Tobias Wren (General Counsel, Stonefield Logistics Group Inc.) to Vantor Holdings Corp. and Vantor Transportation Services LLC. The termination letter was transmitted by overnight courier and email. The letter states that VTS "failed to cure the material breaches identified in the Cure Notice dated January 18, 2022, within the Cure Period," and that Stonefield "hereby terminates the Transportation Services Agreement, Contract Reference No. SLG-VTS-2019-0315, dated March 15, 2019, effective immediately, pursuant to Section 13.1(a)." The letter further reserves all rights and remedies available to Stonefield under the TSA and at law.
The termination occurred on March 4, 2022, which is fifteen days after the expiration of the Cure Period on February 17, 2022. There is no timing challenge available to Vantor. Section 13.1(a) does not impose any deadline for exercising the termination right after the Cure Period expires; rather, it provides that the non-breaching party "may terminate" the agreement after the Cure Period has expired without cure. The 15-day interval between the expiration of the Cure Period and the issuance of the termination letter is well within any reasonable interpretation of the termination provision. Indeed, the brief interval is consistent with Stonefield having taken a reasonable period to assess VTS's post-cure-period performance and to consult with counsel before issuing the termination notice.
Assessment: Procedural compliance with the termination mechanics of the TSA is clear and is likely undisputed. Vantor has not raised any challenge to the form, timing, or delivery of the termination letter in its pleadings or discovery responses. This element should be established as a matter of undisputed fact on summary judgment.
B. Vantor's Anticipated Counter-Arguments and Burden Implications
1. Performance Deficiencies Were Caused by Stonefield's Own Breaches
Vantor's principal factual defense to the Cause termination is the contention that VTS's performance deficiencies in Q4 2021 were caused by Stonefield's own breaches of the TSA — specifically, Stonefield's alleged failure to tender the minimum ACV in freight volumes and Stonefield's alleged diversion of freight to competing carriers. This argument operates both as a challenge to the materiality of VTS's breach (arguing that the breach was excused) and as a separate affirmative theory of Stonefield's breach (arguing that Stonefield breached first).
The factual record on this issue is complex but, on balance, favors Stonefield. The relevant facts are as follows:
Contract Year 2 (CY2): April 2020 – March 2021. During CY2, Stonefield tendered approximately $31.8 million in freight volume against the TSA's ACV of $43.2 million. Standing alone, this would represent a shortfall of approximately $11.4 million. However, Stonefield invoked the force majeure provision of Section 12.1 for the period of April through September 2020, corresponding to the most acute phase of the COVID-19 pandemic and associated supply chain disruptions. The force majeure notice was timely delivered and properly documented. Applying the force majeure adjustment — which excused performance during the six-month period and effectively reduced the applicable ACV for CY2 to $21.6 million (representing the non-force-majeure portion of the year) — Stonefield's actual tenders of $31.8 million exceeded the adjusted ACV by approximately $10.2 million. Accordingly, there was no volume shortfall in CY2 after application of the force majeure provision.
Contract Year 3 (CY3): April 2021 – January 2022 (partial, through termination). During the first ten months of CY3, Stonefield tendered approximately $36.5 million in freight volume. Vantor calculates this as a $6.7 million shortfall against the full-year ACV of $43.2 million, contending that the prorated shortfall through ten months should be approximately $36.0 million (i.e., 10/12 of $43.2 million), such that the actual shortfall is only approximately $0.5 million if prorated. However, Vantor alternatively argues that the ACV represents a minimum annual commitment and that prorating is inappropriate — a legal argument that is contested. Even accepting Vantor's most favorable prorated calculation, the claimed shortfall is modest in comparison to VTS's dramatic SLO failures.
The causation argument — that Stonefield's volume shortfalls caused VTS's performance degradation — is substantially undermined by the Milescu November 12, 2021 email (Bates No. VHC-008417). This document, produced by Vantor during fact discovery, is an internal VTS email from Sandra Milescu (SVP of Operations, VTS) to three members of her operations team, copying Alex Vantorovich (CEO, Vantor). The email states: "We pulled 85 tractors off the SLG dedicated lanes to cover the Northwind ramp. Alex approved the move — SLG will just have to deal with the reduced capacity for a while." This email is devastating to Vantor's causation theory because it establishes that VTS's equipment availability shortfall — the single most severe SLO failure, at 62% versus an 85% threshold — was caused not by Stonefield's conduct but by VTS's own unilateral decision to redeploy dedicated equipment to a different customer. The document was supplemented by Vantor's supplemental production of June 22, 2023, which included additional internal correspondence confirming that the 85 tractors were redirected to the Northwind Distribution Co. account.
Sandra Milescu confirmed the substance of this email during her deposition on August 4, 2023 (approximately 7 hours). Milescu testified that 85 tractors were reassigned from SLG-dedicated lanes to the Northwind Distribution Co. account in October 2021. When asked whether Stonefield was notified of the reassignment, Milescu stated that she "could not recall" whether SLG was notified and could not identify any written communication to Stonefield regarding the equipment redeployment. When pressed on whether the reassignment violated VTS's fleet capacity commitments under the TSA, Milescu acknowledged that the TSA required VTS to maintain a minimum fleet capacity of 400 tractors on SLG-dedicated lanes but testified that VTS "expected to be able to ramp back up within a few weeks." She was unable to identify any steps taken to restore capacity on the SLG account during Q4 2021.
Vantor will bear the burden of proving that Stonefield's alleged volume shortfalls (a) constituted a breach of the TSA and (b) proximately caused VTS's performance failures. Given the Milescu email and deposition testimony, the causation link is substantially weakened. The most damaging fact for Vantor on this point is that VTS made a conscious, internal business decision to divert resources away from the Stonefield account — a decision that preceded and explains the Q4 2021 SLO failures far more directly than any alleged Stonefield volume shortfall.
2. Pretextual Termination / Bad Faith Motive
Vantor's second principal argument is that Stonefield's termination was pretextual — that Stonefield terminated the TSA not because of genuine performance concerns but to avoid the scheduled April 2022 rate adjustment. The TSA's rate escalation mechanism provided for a 14.3% increase in the weighted average per-mile rate, from $2.87 per mile to $3.28 per mile, effective April 1, 2022. An internal analysis memorandum prepared by Ashford Meridian (Stonefield's financial advisory consultant) in February 2022 projected that the rate adjustment would increase Stonefield's annual transportation costs by approximately $6.2 million.
Vantor's pretext argument has some superficial appeal but faces significant legal and factual obstacles. As a threshold matter, Vantor would need to prove that no objective Cause existed and that the stated reasons for termination were fabricated — a showing that is extremely difficult to make in light of the undisputed SLO data discussed above.
The most significant piece of evidence supporting Vantor's pretext theory is an email from Janet Kirkwood (SVP of Supply Chain, Stonefield) to Carlos Medina (CFO, Stonefield), dated September 22, 2021. The email states: "If VTS doesn't get its act together by Q1 I think we pull the plug on the whole contract." This email, produced as SLG-003217, could be construed as evidence of a premeditated exit strategy — suggesting that Stonefield had already decided to terminate the TSA before the Q4 2021 performance failures provided a contractual basis for doing so.
However, several considerations mitigate the impact of this email. First, the email is dated September 22, 2021 — before the most severe Q4 2021 performance failures occurred and before the October 2021 fleet capacity reduction that triggered the most dramatic SLO shortfalls. Read in context, the email reflects Kirkwood's frustration with an ongoing trend of deteriorating performance rather than a plan to manufacture a pretext for termination. Second, and more fundamentally, New York law does not inquire into the subjective motive of a party exercising a contractual termination right when objective contractual grounds for termination are independently satisfied. As analyzed in the October 7, 2022 memorandum prepared by Simone Laroche and the March 28, 2023 memorandum analyzing rate adjustment motive evidence, New York courts have consistently held that "the existence of an ulterior motive does not invalidate a termination that is otherwise authorized by the contract." See Reuben H. Donnelley Corp. v. Mark I Mktg. Corp., 893 F. Supp. 285, 290 (S.D.N.Y. 1995) (under New York law, "where a party has a contractual right to terminate, its motive for exercising that right is irrelevant"); see also Atel Capital Equip. Fund VIII, LLC v. Resolute Fund II, LLC, 2012 WL 3278940, at *6 (S.D.N.Y. Aug. 10, 2012).
Janet Kirkwood testified during her deposition on July 14, 2023 (approximately 6.5 hours) on several matters relevant to the pretext argument. Kirkwood testified that the volume diversion to Cascade Freight Systems Inc. and Briarwood Trucking Co. was limited to Secondary Lanes (Lanes 8 through 14) that were not subject to the exclusivity commitment under Schedule C, Section 2(b) of the TSA, and that the diversion was "operationally necessary" in response to VTS's repeated tender rejections on those lanes. Kirkwood acknowledged that she was aware of the upcoming April 2022 rate adjustment at the time the termination decision was made, but she denied that the rate adjustment influenced the termination decision. Kirkwood stated: "The rate adjustment was going to happen whether we stayed with VTS or not — that was built into the contract. The decision to terminate was about performance, period."
Assessment: Even if Stonefield bears the burden on the Cause defense, proving that objective Cause exists independently of any concurrent economic motivation renders the pretext argument largely academic under New York law. The strongest precedent supports the proposition that a valid contractual termination is not vitiated by the existence of an ulterior motive. However, this is the area of the case most likely to generate a triable fact issue, because a court could conclude that the Kirkwood email, when viewed in the light most favorable to Vantor, creates a genuine dispute as to whether the termination was motivated by legitimate performance concerns or by economic opportunism. The risk is not that the pretext argument would ultimately prevail at trial — the objective data is too strong — but rather that the existence of the Kirkwood email might preclude summary judgment by creating a factual question for the jury.
3. "Substantial Cure" Argument
Vantor may argue that VTS substantially cured the identified breaches within the 30-day Cure Period, even if it did not achieve full compliance with every SLO metric. The "substantial cure" doctrine, as recognized in some New York decisions, provides that a breaching party may satisfy a contractual cure obligation by demonstrating meaningful, good-faith remedial efforts that substantially address the identified breach, even if full cure has not been achieved by the end of the cure period. See, e.g., Grace v. Nappa, 46 N.Y.2d 560, 571 (1979) (noting principle of substantial performance in cure context).
The burden analysis on this argument is somewhat nuanced. If Stonefield proves that Cause existed — that is, that VTS committed a material breach and that the Cure Notice was adequate — the burden would effectively shift to Vantor to prove that VTS cured the breach within the Cure Period. Cure is, in essence, a defense to the Cause defense — a burden within a burden. Vantor would need to demonstrate that VTS took concrete remedial steps during the 30-day period and that those steps substantially addressed the identified deficiencies.
As discussed above, the evidence on this point strongly favors Stonefield. VTS's February 14, 2022 response identified only general categories of remedial action without specific details. Derek Pruitt was unable to identify concrete mitigation steps during his deposition. And objective post-cure-period performance data confirmed continued noncompliance. The "substantial cure" argument therefore lacks factual support, although it cannot be dismissed entirely as a basis for creating a triable issue of fact.
V. Summary Judgment Considerations
A. Movant's Burden on Summary Judgment
Under Federal Rule of Civil Procedure 56, a court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The movant bears the initial burden of demonstrating the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The nature of this burden depends on whether the movant bears the ultimate burden of persuasion on the issue at trial.
Where the movant bears the burden of proof at trial — as Stonefield does on the Cause affirmative defense and on the declaratory judgment counterclaim — the movant must produce sufficient evidence to support each element of its claim or defense such that no reasonable trier of fact could find otherwise. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). This is a more demanding standard than the Celotex burden applicable to a movant seeking summary judgment on an issue on which the nonmovant bears the trial burden.
Once Stonefield meets its production burden on the Cause defense by presenting evidence supporting each element — material breach, adequate cure notice, failure to cure, and valid termination — the burden shifts to Vantor to come forward with specific facts demonstrating a genuine dispute of material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986). Vantor cannot rely on "mere allegations or denials" in its pleadings but must identify particular evidence in the record creating a triable issue. Fed. R. Civ. P. 56(c)(1).
On Stonefield's counterclaim for declaratory judgment, the same burden structure applies. Stonefield, as the party seeking affirmative relief, must demonstrate entitlement to judgment as a matter of law on each element of its claim for declaratory relief.
B. Recommended Framing Strategy
Based on the analysis in this memorandum and the current state of the evidentiary record, the following framing strategy is recommended for Stonefield's anticipated summary judgment motion:
Lead with undisputed facts. The motion should open with a comprehensive statement of undisputed material facts establishing the objective basis for Cause termination. The goal is to present the Court with a factual record so clear and well-documented that the burden of production is easily satisfied, and the practical burden shifts decisively to Vantor to create a genuine dispute. The undisputed facts to be highlighted include:
• VTS's own internal documents and Carrier Performance Portal data establishing SLO failures across all five metrics in Q4 2021. These figures are largely admitted or corroborated by Vantor's own evidence, including VTS's February 14, 2022 response to the Cure Notice, which acknowledged "operational challenges" without disputing the underlying metrics.
• Vantor's RFA admissions, including the admission that the on-time pickup rate was 78.2% in Q4 2021.
• VTS's February 14, 2022 response to the Cure Notice, which acknowledged "operational challenges" without demonstrating remediation or a return to SLO compliance.
• Raymond Hess deposition testimony: the Q4 2021 performance metrics were derived from VTS's own portal; VTS did not dispute the accuracy of the metrics during the cure period or in its cure response.
• Derek Pruitt deposition testimony: acknowledged that VTS "struggled" to maintain committed fleet capacity during Q4 2021; was unable to identify specific mitigation steps taken during the Cure Period or after termination.
• Sandra Milescu deposition testimony: confirmed that 85 tractors were reassigned from SLG-dedicated lanes to the Northwind Distribution Co. account in October 2021 without notification to Stonefield.
• Alex Vantorovich partial deposition testimony (August 18, 2023, 4.5 hours before testimony was suspended due to illness): testified that he was "not involved in day-to-day fleet decisions" and deferred all operational questions to Sandra Milescu; did not recall the specifics of the November 12, 2021 email bearing his name.
Minimize exposure on disputed facts. The motion should anticipate and address Vantor's two principal factual arguments — the Kirkwood email and the rate adjustment motive — in a manner that renders them immaterial as a matter of law. The recommended approach is as follows:
• Kirkwood September 22, 2021 email: Frame this document as irrelevant to the objective Cause analysis. Argue that even accepting Vantor's most favorable characterization of the email — as evidence that Stonefield was contemplating termination before Q4 2021 — the email does not create a genuine dispute as to whether objective Cause existed. The email does not suggest that the SLO data was fabricated, that the Cure Notice was improper, or that VTS actually cured the identified deficiencies. At most, it shows that Stonefield was unhappy with VTS's performance — which is entirely consistent with, and in fact supports, the Cause termination.
• Rate adjustment motive: Argue that, under New York law, the existence of a concurrent economic motivation for termination does not negate objective Cause when the contractual termination conditions are independently satisfied. The rate adjustment was a scheduled event under the TSA's own terms — awareness of a contractual rate escalation is not evidence of bad faith. Cite the body of New York authority holding that subjective motive is irrelevant to the exercise of a contractual termination right.
Seek partial summary judgment where appropriate. Consistent with the September 15, 2023 Summary Judgment Roadmap Memorandum (prepared jointly with Simone Laroche), Stonefield should consider moving for partial summary judgment on specific elements and affirmative defenses even if full summary judgment on the Cause question is opposed or denied. Candidates for partial summary judgment include:
(a) Adequacy of the Cure Notice under Section 13.2 — likely uncontested;
(b) Bar on consequential damages under TSA Section 15.1 — which would eliminate $5.2 million in stranded asset claims, $2.87 million in workforce reduction costs, and $1.4 million in mitigation costs, totaling $9.47 million;
(c) Failure to mitigate — based on the robust Q1–Q2 2022 freight market conditions and Vantor's admitted lack of mitigation efforts; and
(d) Unenforceability of the liquidated damages clause under Section 14.2 as an impermissible penalty — which, if successful, would eliminate the single largest damages component ($67.23 million).
C. Risk Assessment
The following risk assessment addresses the likelihood of success on summary judgment and identifies the principal vulnerabilities in Stonefield's position.
Primary Risk: The Court may find that the Kirkwood September 22, 2021 email creates a triable issue of fact on the question of pretext, precluding full summary judgment on the Cause defense even though the objective performance metrics are undisputed. The risk is not that the pretext argument would ultimately succeed at trial — the objective data is overwhelming — but that a court, viewing the record in the light most favorable to the non-movant, might conclude that a reasonable jury could infer that the termination was motivated by a desire to avoid the rate adjustment rather than by genuine performance concerns. Judge Calloway is known to be cautious on summary judgment motions involving questions of motive and intent, and Vantor will likely argue that the Kirkwood email, combined with the circumstantial timing of the termination (just weeks before the April 2022 rate adjustment), creates a sufficient factual dispute to warrant trial.
Mitigation of Primary Risk: The most effective mitigation is to emphasize that pretext is legally irrelevant under New York law where objective Cause is established. The motion should include a dedicated section arguing that, as a matter of law, the existence of concurrent economic motivations does not negate a contractually authorized termination. If the Court is nonetheless inclined to treat the motive question as a factual issue, Stonefield should argue in the alternative that the undisputed SLO data independently satisfies the Cause requirements, such that Vantor's motive evidence, even if credited, cannot create a genuine dispute on the ultimate Cause question.
Secondary Risk: Vantor's "substantial cure" argument — while factually weak based on post-cure-period data, Pruitt's deposition admissions, and VTS's own failure to document any concrete remedial steps — could be characterized by the Court as a factual dispute precluding summary judgment. Courts are sometimes reluctant to resolve cure disputes on summary judgment, preferring to allow the trier of fact to weigh the sufficiency of the breaching party's remedial efforts.
Overall Assessment: Stonefield has a strong but not certain path to full summary judgment on the Cause defense. The objective performance data is compelling, the procedural compliance with the TSA's termination mechanics is clear, and key deposition admissions from VTS's own witnesses undercut Vantor's factual defenses. The principal uncertainty lies in the Court's treatment of the motive/pretext question, which may depend on the specific judge's approach to summary judgment in cases involving circumstantial evidence of intent. Partial summary judgment on ancillary issues — consequential damages bar, failure to mitigate, penalty analysis of the liquidated damages clause — is highly likely and would substantially reduce Stonefield's exposure even if the Cause question proceeds to trial.
VI. Impact on Damages Burden
The allocation of the burden of proof on the Cause question has direct and significant implications for the damages analysis.
If Stonefield prevails on its Cause defense — whether at summary judgment or at trial — Vantor's damages claims fail entirely. A valid Cause termination is a contractually authorized termination, and Stonefield would have no liability for breach of contract. In that scenario, Vantor would be entitled to zero damages. This conclusion is consistent with the analysis set forth in the rebuttal expert report of Dr. Evelyn Rosser (Kensington Analytics Group LLC), served on August 25, 2023, which concludes that if the termination is found to be valid for Cause, Vantor's damages are $0.
If the Court finds a triable issue on the Cause question — and the case proceeds to trial on the question of whether Cause existed — the damages burden remains with Vantor in all scenarios. Vantor must prove the quantum of its damages with reasonable certainty, regardless of the outcome on the Cause defense. See Kenford Co. v. County of Erie, 73 N.Y.2d 312, 319 (1989) (damages must be "capable of measurement based upon known reliable factors without undue speculation").
The enforceability of the $67.23 million liquidated damages clause under Section 14.2 of the TSA is a separate legal question that is independent of the Cause analysis. Stonefield's Second Affirmative Defense contends that the liquidated damages clause is an unenforceable penalty under New York law, on the grounds that the stipulated amount is grossly disproportionate to any reasonable estimate of Vantor's probable loss and that Vantor's actual damages are readily ascertainable. See Northpoint Holdings v. Purdy Corp., 41 N.Y.2d 354, 356 (1977) (liquidated damages clause unenforceable where stipulated amount is "plainly or grossly disproportionate to the probable loss"). Even if the Cause defense fails at trial, the penalty argument may independently eliminate or substantially reduce the largest component of Vantor's damages claim.
In the alternative damages scenario — assuming arguendo that the termination is found to be wrongful — Dr. Rosser's alternative analysis caps Vantor's maximum recoverable damages at $8.2 million after adjustments for: (i) VTS's own breaches (reducing the damages base); (ii) Vantor's failure to mitigate (given the robust freight market in Q1–Q2 2022 and Vantor's admitted failure to take reasonable mitigation steps); and (iii) proper market-based calculation of lost profits (rather than the inflated assumptions used by Vantor's expert). This contrasts sharply with the $95.4 million total claimed by Dr. Philip Trask of Trask Greystone & Associates in his expert report on behalf of Vantor. The gap between the two experts' analyses — $8.2 million versus $95.4 million — will be a central issue at trial if the case proceeds that far.
Vantor bears the burden of proving damages in all scenarios, including the burden of proving the enforceability of the liquidated damages clause and the burden of proving its lo