The SC, in its ruling, clearly lays out a roadmap for the precedent they want Parsons to follow for awarding Type II damages
Regarding Goodstein, The Eighth Circut commented that it was “not as confident . . . that Goodstein . . . should be read as categorically precluding benefit-of-thebargain damages for all breaches of binding preliminary agreements to negotiate a final agreement in good faith.” The Eighth Circuit then proceeded to analyze the question of whether Goodstein would bar expectation damages for breach of a Type II agreement.The Eighth Circuit questioned whether Goodstein would still apply if a judge could discern “what agreement would have been reached.” Ultimately, the Eighth Circuit declined to award expectation damages because the “[t]erm [s]heet was silent on significant issues” and “the missing terms [could not] be judicially determined by objective criteria in the [t]erm [s]heet itself or in commercial practice, usage, or custom.
In Venture Associates, the Seventh Circuit Court of Appeals addressed “a binding agreement to negotiate in good faith toward the formation of a contract of sale” under Illinois law. The majority noted that “if the plaintiff can prove that . . . [but] for the defendant’s bad faith[,] the parties would have made a final contract, then the loss of the benefit of the contract is a consequence of the defendant’s bad faith,” and the defendant is liable for that loss if it is foreseeable. And...“[t]he difficulty, which may well be insuperable, is that since by hypothesis the parties had not agreed on any of the terms of their contract, it may be impossible to determine what those terms would have been and hence what profit the victim of bad faith would have had.”
In SIGA v Pharmathene, the Delaware Supreme Court found that where 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. However, they also noted that "an expectation damages award presupposes that the plaintiff can prove damages with reasonable certainty...(“It is well-settled law that ‘a recovery for lost profits will be allowed only if their loss is capable of being proved, with a reasonable degree of certainty. No recovery can be had for loss of profits which are determined to be uncertain, contingent, conjectural, or speculative.’”"
See the trend? There really isn't that much that is uncertain about where the Delaware Supreme Court is looking to go. Everyone is in agreement that expectation damages are theoretically recoverable in these Type II good faith cases; the real difficulty is in the practical requirements: It must be found that both parties would have agreed to the terms of the future contract (Parsons gets around this one by claiming he knows they would have-which is ridiculous but is now a finding of fact so OK, whatever) AND it must be found, by objective criteria, that there would be no missing essential terms in the contract (This is the one it's all going to hinge on, Parsons already found there were missing essential terms and tried to get around this by making up 14 pages of additional imaginary terms and definitions in his final judgement to suppliment the two page LATS). It's that simple.