News & Analysis as of

Specific Performance

Dorsey & Whitney LLP

Hell-or-High-Water Clauses in Uncertain Regulatory Times

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​​​​​​​In a deal market as uncertain as this one, we have seen transactional lawyers more frequently resorting to pushing what are known as “hell or high water” clauses - clauses that obligate parties to take “any and all...more

Goodwin

Twitter Brings Suit Against Musk in Delaware Court of Chancery Seeking Specific Performance

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On July 12, 2022, Twitter, Inc. brought a civil action in the Delaware Court of Chancery against Elon Musk, the co-founder and CEO of Tesla Motors, Inc., for breach of contract in an attempt to force Musk to complete his...more

Kramer Levin Naftalis & Frankel LLP

Once More Unto the (Material) Breach: Twitter Sues Elon Musk to Enforce Agreement

On July 12, 2022, Twitter, Inc. sued Elon Musk and certain of his special purpose entity affiliates in the Delaware Court of Chancery, seeking specific performance to force Mr. Musk to close on his agreement to purchase...more

Hogan Lovells

Level 4 Yoga v. CorePower Yoga: COVID-19 shutdown not grounds for asset purchase repudiation - Corporate / M&A Decisions update...

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In Level 4 Yoga, LLC v. CorePower Yoga, LLC, C.A. No. 2020-0249 (Del. Ch. March 1, 2022), the Delaware Court of Chancery granted Level 4, the owner of franchised yoga studios, an order of specific performance and compelled...more

J.S. Held

What is Human Factors?

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Humans as we are, “Homo sapiens,” can be traced back around 300,000 years. Our large and complex brains work continuously to develop tools, devices, and complex technologies. We build teams, start families, live in social...more

White & Case LLP

Compelling the performance of construction works

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Courts and arbitral tribunals in many jurisdictions have the power to order contractors to perform building works - to order "specific performance" of a construction contract.  But these powers are rarely exercised.  A recent...more

Skadden, Arps, Slate, Meagher & Flom LLP

WEX Win Interpreting COVID-19 Material Adverse Effect Shows M&A Drafting Traps

On October 12, 2020, in Travelport Ltd & Ors v WEX Inc [2020] EWHC 2670, Justice Cockerill of the English High Court held that WEX had in large part correctly interpreted the terms of the material adverse effect (MAE) clause...more

Ward and Smith, P.A.

When a Condominium Falls Down

Ward and Smith, P.A. on

Buildings do not last forever. Eventually, gravity and time will prevail over concrete, steel, wood, and glass. The risks associated with that life span are captured well in transactions related to single-family homes and...more

White & Case LLP

Subcontracting without consent – when performance gets personal

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Restrictions on a contractor's rights to subcontract works are common across industry forms of contract, and breach of these provisions can have significant consequences for a contractor. In a recent Australian case, the...more

Tucker Arensberg, P.C.

Sellers and Specific Performance: A Remedy in Equity or Damages Flowing From a Breach?

Tucker Arensberg, P.C. on

If a Buyer breaches an Agreement of Sale and refuses to buy the property, can the Seller seek specific performance as a remedy? A 2019 Superior Court decision concluded yes....more

White & Case LLP

Cryptocurrencies: Property, Trust and Mistake

White & Case LLP on

B2C2 Ltd v Quoine Pte Ltd [2019] SGHC(I) 03, a decision of Simon Thorley IJ sitting in the Singapore International Commercial Court, is one of the first instances to apply contractual principles and trust law to a...more

Perkins Coie

Public Agency Could Validly Accept Dedication After Twenty Years By Physically Occupying the Property

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Twenty years was a reasonable period of time for a public agency to accept a right-of-way dedication offer by physically occupying the property. Prout v. Department of Transportation, 31 Cal. App. 5th 200 (2019). Prout...more

Skadden, Arps, Slate, Meagher & Flom LLP

Analyzing Akorn: Delaware’s First M&A Termination Under Material Adverse Effect

On October 1, 2018, Vice Chancellor J. Travis Laster of the Delaware Court of Chancery issued a 246-page post-trial opinion in Akorn, Inc. v. Fresenius Kabi AG, C.A. No. 2018-0300-JTL, that denied the seller’s (Akorn) request...more

Polsinelli

Missouri Appellate Court Explores Legal Remedies after Failed Business Purchase, Joins the Trend of State Court Exploring the...

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A recent court case from Missouri’s Eastern District Court of Appeals provides insight on the intersection of declaratory judgments, legal damages, and equitable relief, particularly in disputes over complicated business...more

Proskauer Rose LLP

New York Court Holds Hotel Management Agreement Enforceable by Specific Performance

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In a significant development for hotel owners and operators, a New York state court judge recently held that a hotel management agreement ("HMA") was enforceable by specific performance, enabling the operator of the...more

Snell & Wilmer

Specific Performance of an Option Contract to Purchase Real Property is Barred Absent Agreement on All Material Terms

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On November 14, 2017, the Court of Appeals (Division 1), in Offerman v. Granada, LLC, 2017 WL 5352664, reversed a trial court order directing specific performance of an alleged option to purchase real property, holding that...more

A&O Shearman

Delaware Court Of Chancery Orders Specific Performance, Finding Plaintiff Did Not Breach Its Contractual Obligation To "Reasonably...

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On September 11, 2017, Chancellor Andre G. Bouchard of the Delaware Court of Chancery ordered defendant, Comdata, Inc. (“Comdata”), to specifically perform under, and pay damages for its termination of, its merchant agreement...more

Miller Starr Regalia

Built-In Contract Remedies: Avoiding the Unenforceable Penalty

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Under California law, a provision of a contract found to impose a penalty is unenforceable as a forfeiture and contrary to public policy. The characteristic feature of a penalty is the lack of proportional relation between...more

Kramer Levin Naftalis & Frankel LLP

The Redemption 'Make Whole' Remedy Controversy – An Easy Fix

The new year has brought an unexpected controversy in an otherwise very issuer-friendly high yield bond market, one involving limiting the available remedies following default that were expanded in last year’s decision by the...more

Patterson Belknap Webb & Tyler LLP

Impeding the Counterparty’s Ability to Satisfy a Condition Precedent Could Result in Liability

Justice Jeffrey K. Oing in the Commercial Division handed down a decision recently that discusses frustration of the occurrence of a condition precedent by parties to commercial contracts. Nesconset ZJ 1 v. Nesconset...more

Jaburg Wilk

The Defaulting Seller and a Notice of Lis Pendens

Jaburg Wilk on

After months of searching, you have finally found the house of your dreams, and much to your delight the Seller has accepted your offer of $500,000. You deposit your $15,000 “earnest money” with the escrow company, and an...more

Kelley Drye & Warren LLP

Ninth Circuit Affirms Judge Robart’s RAND Decision (Microsoft V. Motorola)

Yesterday, the Ninth Circuit court of appeals issued a decision affirming Judge Robart’s RAND decision in the much watched Microsoft v. Motorola case, basically ruling that the determination of a reasonable and...more

Foley & Lardner LLP

It’s Time to Rewrite Wisconsin’s Single-Party Listing Agreement

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A note to the drafters of Wisconsin’s single-party listing contract: It’s time to redefine what triggers the payment of a commission under the contract after a recent decision of Wisconsin’s supreme court in Ash Park, LLC v....more

Morris James LLP

Court Of Chancery Confirms Jurisdiction Over Escrows

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There are often disputes over funds held in escrow under earn out or indemnification provisions in various deals. This decision confirms that the Court of Chancery will take jurisdiction over a suit seeking specific...more

Brooks Pierce

Interpreting The Right To Specific Performance In A Shareholder Buy-Sell Agreement

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I've never thought very hard about the remedy of specific performance. That means ordering a party to a contract to perform its contractual obligations. But the ability of the Court to order specific performance was...more

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