$14.625 Million Jury Compensatory Award Went Away, Too.
Concept Chaser Co., Inc. v. Pentel of America, Ltd., Case Nos. B241929/B243330 (2d Dist., Div. 7 May 27, 2014) (unpublished) drew a majority and two concurring opinions in a case where a breach of contract jury verdict of $14.625 million and postjudgment fee award of $1,512,999 went POOF! when the appellate court reversed and remanded for a new trial of actual damages to the likely chagrin of the formerly prevailing plaintiff. What was the basis for the reversal and remand? A funky liquidated damages clause indicating that defendant would pay a “penalty” for each unauthorized usage of plaintiff’s idea to promote HyperG pens “of $10,000.”
Driving goats from pen into shearing pen. Russell Lee, photographer. 1940. Library of Congress.
The appellate court justices found there was no mutual assent to the damages provision because there was no clear-cut formula to advice the parties on how liability would be imposed or, alternatively, the liquidated damages clause was invalid/was an unlawful penalty. So, the matter went back for a new trial on actual damages, with the reversal meaning it was premature to award fees until a prevailing party was determined upon remand. Quite a shearing!
