I remembered that I talked about this in an earlier thread where I analyzed Parsons' denial of Siga's motion for reargument so I dug it up and reread. Now I am getting a little more hopeful that he will have a hard time saying that now his award can be entirely based on contract law instead of promissory estoppel (where a judge would not be constrained from imposing things like constructive trusts). Reason being the language Parsons used. "Authority," "remedial flexibility," and "broad discretion" sound more like they belong to the world of equity law than contract law to me. Here's a copy and paste from my analysis:
[JP says "Siga's second ground for seeking reargument is that the Court misapprehended the law in awarding an equitable remedy that fails to comport with the requirement at law that damages be proven with reasonable certainty [my emphasis]." Again JP trots out the court's "authority" and "remedial flexibility" from previous Chancery cases. He conveniently fails to acknowledge the numerous examples that Siga brought up WHICH WERE FROM APPELLATE CIRCUIT COURTS. The fact that JP continually relies on his "broad discretion" to back up his decision and ignores cases from higher non-Chancery courts is very telling!! If he was so confident that his decision will hold up on appeal then why not be out in the open in refuting Siga's examples? He even ignores the Chancery examples that Siga threw back in his face that illustrated this point about needing certainty in order to award damages!]
Of course now with 20/20 hindsight we see that the SC did shoot down his damage award and did indeed bring up the "reasonable certainty" requirement that Siga had previously. Now this time Parsons can't say that he has almighty powers and can do whatever he wants according to equity law; he has to, as the SC said, "look to the contract."
Review of Delaware Supreme Court's decision by major law firm seems fairly clear: "Noting the lack of consensus in the courts regarding whether expectation damages are an appropriate remedy, the Court distinguished the instant case [SIGA Technologies, Inc. v. Pharmathene, Inc.] by highlighting the Court of Chancery’s finding that the parties would have agreed to a license agreement on the economic terms set forth in the LATS and, therefore, the damages could be measured with reasonable certainty, a prerequisite for expectation damages."
The language of the quote above comes directly from Sullivan & Cromwell's review of the case. The words "therefore, the damages could be measured with reasonable certainty" are their words.
" he has to, as the SC said, "look to the contract."
And you can thank GOLONG for refreshing your memory & killing the "things don't look good for us" sentiment.
Over analyzing can cause you to lose sight of what is right in your face(as in "you can't see the forest from the trees"),NWJ?
SIGA WON with the SC decision!
PIP & PARSONS (& DRAPKIN too) LOST!
PARSONS LOST bigtime with his 47 page dump!
Now, it's wait, watch, and enjoy PARSONS etal fall on his(their) sword!
And it will not be a very long wait!