A number of good points made in the open letter to Parsons, but here is my take.
Parsons must make a ruling that speaks to the future. He cannot award "fantasy" money, as he called it, to PIP.
IMO, he must only award reliance damages. This is simple and speaks to the future. It tells companies if you want protection above and beyond reliance damages in a situation like this, you have to spell out the what if`s in detail in writing. Clear and simple.
Parsons made a bad finding of fact; that the parties would have reached an agreement if not for bad faith. That's why he has to muddle a damages award. The SC pointed this out, indirectly. If it's difficult to fashion a remedy, i.e. if terms of the incomplete contract need to be fabricated by the court, then the premise that there was injury that can be compensated is faulty. PIP can never get the benefit of the bargain because the terms were never defined sufficiently to determine with any certainty what that benefit would be. The economic terms were developed which represent the upside but there was nothing tangible in the LATS that represents the downside. How much would it have cost PIP to bring the drug to market, and was there reasonable certainty that it would get through development? In 2006 no human trials had been completed.
Well, in this damages reward I hope Parsons factors in the risk SIGA was taking at the time they walked away. Another round of testing had to be done.
I still don`t get why PIP is so deserving. The theory they deserve half does not seem fair for the risk they took at the time. I have no doubt PIP would have walked away if the chimps died, SIGA would be bankrupt and there would be no lawsuit to force PIP to buy the remnants of a worthless company.
You are wrong about Parsons findings, as clearly stated by Delaware Supreme Court on page 37 of its decision:
"In this case, the Vice Chancellor made two key factual findings, supported by the record: (1) 'the parties memorialized the basic terms of a transaction in . . .the LATS, and expressly agreed in the Bridge Loan and Merger Agreements that they would negotiate in good faith a final transaction in accordance with those terms' and (2) 'but for SIGA’s bad faith negotiations, the parties would have
consummated a license agreement.' The Vice Chancellor’s factual conclusions support a finding that SIGA and PharmAthene entered into a Type II preliminary agreement and that neither party could in good faith propose terms inconsistent with that agreement."
How is a finding of fact addressed by Delaware Supreme Court as being "supported by the record" wrong?
Delaware Supreme Court is clearly indicating they lost the benefit of the bargain and agree with Parsons in that regard.
If he does that, every single agreement that includes the legal term "in good faith" is null and void. Either party can screw the other without recourse or significant financial penalty. Without penalty, the any such commitment is meaningless as either party can do the math at some future date and determine that hassle of litigation, which they will win, is worth the trouble.
"Clear and simple"
Nothing, in this world, is clear and simple. In fact most of it is blather and bamboozel.
Why, some may prevail in saying that if the glove don't fit, you gotta acquit. Other may say that's nonsense. Some may prevail in a matter in saying that it all depends upon what the definition of "is" is. Or that a BJ isn't sex. Other may say that's nonsense.
My take? Well, at this point, what difference does it make?
The other issue is that Parsons will never read it, AND the author bases too much of his opinion on "what if". Again, had PIP negotiated in bad faith, SIGA would have been able to drag them into court and hold them accountible. The case, at this point, is NOT about "well, PIP would have done it too" and "But, they never paid anything".....and IS about the fact that SIGA is liable for not negotiating in GOOD FAITH as they had promised, and what the ACTUAL and APPROPRIATE damages should be for them not doing so. We all know that PIP is full of #$%$-buckets and losers that would have walked had the results been bad, but they weren't and they're not the ones being sued.